PUTRAJAYA, Nov 7 ― The Court of Appeal today dismissed Pakatan Rakyat’s lawsuit to quash the results of the general election last year in a majority decision that found the application resembled an election petition.
A three-member panel chaired by Justice Alizatul Khair Osman Khairuddin, in 2-1 decision, upheld a lower court judgement that the proper forum to contest electoral outcome was the Election Court.
However, Justice Prasad Sandosham Abraham partially dissented, saying the plaintiffs may pursue their claim that Election Commission's (EC) failed in its constitutional duty to ensure that the general polls were conducted with integrity.
"The determination of (the plaintiffs) constitutional rights is actionable," said Prasad, stating that the individuals involved are entitled to seek for the declaration that the electoral body had failed to discharge its obligations.
In February, High Court judge Rosnaini Saub rejected the civil suit saying, among others, that it was "unsustainable" as to annul the results of an entire general election as it would be unfair to candidates not party to the complaints.
In striking out the suit, the High Court judge also refused to grant the declaration seeking to remove of the EC's commissioners including chairman Tan Sri Abdul Aziz Mohd Yusof and his former deputy, Datuk Wan Ahmad Wan Omar, saying that such a decision would be unconstitutional.
In upholding the High Court judgement, Alizatul reiterated today that a civil court has no jurisdiction to hear matters pertaining to elections, the removal of the commissioners and, as such, has no right to declare the results of Election 2013 null and void.
Lawyer Americk Singh Sidhu, who acted for the plaintiffs, told Malay Mail Online that the parties were keen on taking the matter up to the Federal Court as the dissenting judge, Prasadh, gave an opinion that there was a matter for the courts to decide.
Apart from Americk, Datuk Ambiga Sreenevasan, Thommy Thomas and Michelle Sunita Kummar also appeared as counsels for PR.
In July last year, the three PR parties of PKR, PAS and DAP filed the civil suit to quash all results from the May 5 general election over alleged fraud that they say was evidenced by the failure of the indelible ink introduced by the EC to prevent repeat voting.
In the statement of claim — in which PR named the entire EC — the federal opposition noted that Abdul Aziz had announced on December 19, 2011 that the indelible ink meant to prevent double voting would have four to seven per cent silver nitrate and would last for seven days.
But on May 4, 2013, Abdul Aziz said that the indelible ink contained just one per cent silver nitrate, according to the statement of claim.
The EC commissioners were represented by senior federal counsels Amarjeet Singh and Suzana Atan today.
The indelible ink was introduced in Election 2013 as one of the main safeguards against electoral fraud, but the scandal surrounding its easy removal transformed it into a symbol of the widespread electoral fraud that PR alleged was perpetrated to keep Barisan Nasional in power.
In the May 5 general election, voters flooded social media services with images and videos showing the easy removal of the semi-permanent ink with common household detergents and, in some cases, nothing more than water and some elbow grease.
Barisan Nasional (BN) maintained its grip on power in the May 5 polls by winning 133 federal seats to PR’s 89, but lost the popular vote and more seats to the informal opposition pact.
